According to a transcript of a radio appearance this week by former Senator Norm Coleman's attorney, Joe Friedberg, the Republican will most likely lose his election contest against Al Franken for the U.S. Senate seat in Minnesota.

"I think it's probably correct that Franken will still be ahead and probably by a little bit more," Friedberg admitted, after announcing that he was "done" with the case.

The Democratic challenger, and now apparent Senator-elect Franken was certified by the bi-partisan state canvassing board to have received 225 more votes than Coleman, out of some 2.9 million cast, at the end of the painstaking, transparent, post-election hand-count of all of the states paper ballots. During the course of Coleman's election contest, which followed that hand-count, Franken gained another 50 or so votes after it was determined that a number of legally cast absentee ballots were inappropriately rejected by election officials.

The 3-judge election contest panel may reach their verdict at any time. Among their decisions is expected to be a finding on whether another 2000 or so rejected absentee-ballots, submitted for consideration by both Coleman and Franken, were "legally cast" and if their results should be added to the final totals. Even so, statistics mavens --- and results of already-counted absentee ballots --- suggest that Coleman will likely have a difficult time closing the gap against Franken, even if all of those currently-uncounted ballots are counted and added to the totals.

Coleman's lead attorney, Friedberg, would now seem to be admitting that and hanging any last hopes he may have on "a constitutional argument, and it's an argument suitable for the Minnesota Supreme Court, not for the trial court."

The short transcript, posted by Hotline, from Wednesday's interview with Friedberg on KFAN's Dan Barreiro Show, hosted by fill-in Ron Rosenbaum, follows below...

Joe Friedberg, attorney for former Sen. Norm Coleman's recount effort, seemed to suggest in a MN radio interview yesterday that Democrat Al Franken will wind out on top when the three-judge panel finishes reviewing the counting process. Friedberg says that he's "done" but that the case could drag on for some time.

Q. Joe, are you done?

A. Yes, I'm done.

Q. Let me ask you in a different way. Is Norm done?

A. Well, I think that we have been trying this case with the appeal record in mind, and that's where we're going, and it's going to be a very quick appeal, and then I will know whether or not it worked.

Q. Well, when you say quick appeal, are you confident that you are going to lose the case in front of the three-judge panel? By losing the case, I mean Norm ends up with less votes.

A. I think that's probably correct that Franken will still be ahead and probably by a little bit more. But our whole argument was that it was a constitutional argument, and it's an argument suitable for the Minnesota Supreme Court, not for the trial court. So we will see whether we were right or not.
...
Q. We could still be awhile before this thing gets decided?

A. Yeah, I think that's clearly true.

The BRAD BLOG has covered your electoral system, tirelessly, fiercely and independently for years, like no other media outlet in the nation. Please support our work, which only you help to fund, with a donation to help us continue the work so few are willing to do. If you like, we'll send you some great, award-winning election integrity documentary films in return! Details on that right here...

Friedberg says it's "a constitutional argument, and it's an argument suitable for the Minnesota Supreme Court, not for the trial court."

What's the argument? "We were ahead on the first count, so that's the count that should count, unless we were behind on the first count, and ahead on the recount, then the recount is the count that should count"?

The "constitutional argument," Mr. Bilse, is Equal Protection. Coleman argued that Bush v Gore compels a determination that he would be denied equal protection unless the court adopted what amounted to lax standards that would permit the opening and counting of the absentee ballots he wanted counted.

In a 2/3/09 order denying Coleman’s motion for summary judgment, the three-judge panel rejected Coleman’s argument. The panel observed that unlike the situation in Bush v Gore where Florida lacked a uniform standard for determining “intent of the voter,” Minnesota had “enacted a standard clearly and unambiguously enumerating the grounds upon which an absentee ballot may be opened or rejected…”

After the three-judge panel issued a 2/13/09 order issued a detailed ruling setting forth the rigorous standards required by MN law before an absentee ballot can be opened and counted, Coleman’s legal team, recognizing that their case was indeed, as I posted here, “dead in its tracks,” grew increasingly strident claiming that MN’s electoral system was “fatally flawed” in that absentee ballots previously opened may not have been uniformly subjected to the same rigorous standard.

The problem, as noted in a Franken filing, is that every electoral error does not rise to the level of a constitutional violation. “Under [Coleman’s] theory, any mistake by a local election official—any misapplication of the statutory standard to particular ballots—would constitute a constitutional violation and draw the entire election into question…[making] democratic government impossible.” Franken went on to note that Bush v Gore does not bar local variances in the administration of elections

Coleman's argument also fails because many of these ballots were opened and counted with his consent.

Ernest: Thank you ... for explaining where things stand in layman terms ...

Iam, however, confused how the Bush v. Gore can be used as an argument:

(My understanding) the SCOTUS justices' ruling had specifically stated Bush v. Gore was not meant to set future precedent (or something to that effect?).

So in that regard it seems inconceivable Coleman's lawyers could argue Bush v. Gore in the first place.

Even if they could, according to the reasons stated in your comments they are making arguments not even addressed in Bush v. Gore --- which then would render their case moot?

With millions of dollars already spent, at the tax payers expense, on court costs and no feasible chance of winning Norm Coleman, who selfishly put his own political aspirations above the country's best interests in the midst of a crisis, would be wise to bring this drama to an end.

Friedberg comments are surprising in that the Election Contest Court judges have not ruled … by making this comment, he is essentially telling them that they are irrelevant. Not smart … but these judges have been taunted by the Coleman legal team before and they have worked very hard to be fair and not give the MN-Supreme Court a chance to overrule.
Coleman wants to appeal based on violations of Equal Protection but that is not really relevant here.
No voter was denied an opportunity to vote. However those that choose to vote via absentee had to follow certain procedures. In Minnesota, voting is a right, but to vote via absentee is a privilege. The Court should see that there was no bias since the procedures were followed successfully in approximately 280,000 cases but 2% of the participants had problems. The Coleman (and Franken) legal teams agreed that many of these “problems” were rejected for just cause such as violation of the witness requirement, signature mismatches, non-registered voters, etc.
The main argument that is being made is that a county (this may have to be rephrased to “some counties” but only Carver County was discussed in the trial) applied a strict review while other counties were lax. OK, except all candidates were subject to the same review by the county, so those that complied with the rules are probably in proportion to those that did not. This is not a case of a “class of voters” that are being denied … just random people who did not comply with procedures. And if the county did alert the voter to the error, a correction could have been made.

Materiality is also a consideration. If Franken’s lead is 500 and Carver had 83 voters rejected due to strict application of the rules, then even if every voter had been a Coleman voter, Franken would still win. The purpose of an election is to determine a winner, not to determine the precise margin of victory.

I am glad that Coleman has taken his case to trial. The trial is proving that the multiple reviews by local election officials and re-enforced by the State Canvassing Board, Minnesota had a clean election. With 42% of the vote, Franken may be able to claim that he prevailed in this contest, but clearly the voters are not enamored with either candidate. Let’s end the claims of fraudulent and stolen elections and get on to seating a Senator.

Coleman’s talks of appeals are a waste of time … especially if Franken’s 225 vote margin is over 500.

I can understand a politician trying every legality to retain his/her seat, but this has turned ridiculous. Now Coleman wants to drag all of this through the Minn. Supreme Court. We are now 60 days past the election and probably headed for (at least) another 60 days of hearings, posturing and delays. This sounds very intentional. Watching all of this tells me there is a conscious effort to keep Franken from being seated while highly important economic bills are being handled by the senate. Clearly, it is a ploy to delay Franken from reaching the senate. No seat, no vote.

What about all the ballots that Franken supporters kept pulling out of the closet, out of the warehouse, out of the hat, days and even weeks after the election? Is this case just about the technical legitimacy of certain absentee ballots, but not about the gross abuses earlier in the recount? A sense of proportionality is the most common common sense to be absent at the present.

Nobody was pulling anything both parties didn't get to see and approve or challenge. I don't think it's reasonable to call the election officials "Franken supporters", and it doesn't matter who pulled ballots out of anywhere. What matters is who put them in to begin with, that any mistakes be corrected, any crimes be dealt with, all legal ballots be counted accurately and the whole process be completely transparent... no matter whose side anyone is on.

You are correct, Serena, that the U.S. Sup. Ct. stated that Bush v Gore was not supposed to be relied upon as a precedent. It nevertheless is a published decision which attorneys will cite.

The bigger problem is that Coleman did precisely what the Sup. Ct. criticized the Gore legal team for.* In filing his election contest, Coleman sought only to have additional absentee ballots opened and counted in counties where he did exceedingly well. The Franken counter claim sought a counting of a specified set of unopened absentee ballots it contended were improperly rejected in the remaining counties. And where most of the ballots Coleman sought to add were properly rejected, Franken's attorneys produced a greater number of ballots, backed up by voter testimony, that should have been opened and counted.

I anticipate that the net result will be a wider Franken victory margin.

To MN Central: A court must decide a case on the basis of the evidence admitted at trial. The panel assigned to hear the contest entailed three very able jurists who would not let an out-of-court comment like Friedberg's influence their decision.

*The Gore legal team operated from a perceptual disadvantage. The focused on the very slender number of votes lost to hanging chads in a couple of heavily Democratic counties, unaware of the fact that some 90,000 mostly African-American voters had been illegally purged from FL's computerized voter rolls by Katherine Harris & ChoicePoint; unaware of the ability to manipulate the count in precincts where the vote either took place on paperless touch screens or optical scanners.

What about all the ballots that Franken supporters kept pulling out of the closet, out of the warehouse, out of the hat, days and even weeks after the election?
_____________________________________

I followed this election contest closely. Team Coleman never offered "any" evidence that Franken supporters had done any of the things you claim. I'm afraid, Minuteman, that you have fallen prey to a vicious right-wing lie that has no more basis in fact than the ridiculous claim that President Obama was not born in the U.S.--a claim repeatedly made despite an authentic birth certificate and despite the fact that the claim has repeatedly been rejected by our courts as frivolous.

What about all the ballots that Franken supporters kept pulling out of the closet, out of the warehouse, out of the hat, days and even weeks after the election?

There are no such ballots. Feel free to demonstrate (with actual evidence) where I'm wrong.

(HINT1: Don't work too hard, because there are no such ballots. HINT2: Be careful about using already-debunked rightwing conspiracy theory nonsense as "evidence" if there is no actual hard evidence to support it, because it's nonsense. HINT3: See HINT1.)

Norm, albeit a nazi thug and bush licker, should have conceded a long time ago. as for Frankfurter, he should never have been the candidate for the dinocratic party in the first place, someone actually viable should have been running in his place. having said all that, minnesota has turned into a right wing nightmare gulag under that pile of putrid slime, pawlenty. shame on you, minnesota, for electing right wing nazi filth to public offices. shame!